Is the invasion in Libya legitimate or an intrusion?

Libya is no stranger to invasion and sanctions from the international community. Since the early 80’s, there has been an expression of dissent to the Gadaffi regime. Having gained independence in 1953 and nationalised the Libyan oil, the Gaddafi regime has been under the watchful eye of the international community.

In April 1986, Libya was bombed by the US in its alleged involvement in terrorist attacks against US citizens in Germany. In 1988, a Pan Am jumbo jet carrying 258 passengers crashed in Lockerbie, a town near the Scottish border. The US accused Libya of the Lockerbie bombing. This saw a series of UN Security Council (UNSC) sanctions imposed against Libya from 1993 through to 2003.

Since January 2011, there has been a revolution sweeping over Libya stemming from dissatisfaction towards the Gadaffi regime. As a result, the UN Security Council (UNSC) has adopted resolutions 1970 & 1973 which call for the immediate end to the violence in Libya and for steps to be taken to address the legitimate demands of the population. In addition, there has been use of armed force by NATO members against the Libyan state forces.

This paper aims to assess the legal justification for the use of armed force by NATO against Libya. In doing so, I will need to assess the precedents that permit the use of armed force under international law.

Following the end of WWII, the UN has been faced with numerous challenges in upholding the objectives set out in its preamble. Prior to that, there had been numerous attempts by the international community to create a system of war prevention and resort to peaceful means to resolve any dispute. The Hague Conventions of 1899 and 1907 and the League of Nations Covenant marked the beginning of an attempt to create a comprehensive legal system that would set limitations to the use of force. However, both conventions lacked clear guidelines on the prohibition on the use of force.

The Kellogg Briand Pact of 1928 saw a change of direction in the development on the prohibition on the use of force. The Pact focused more on creating a general prohibition on war with the exception of the right to self defence. Nearly all states signed to the pact which saw the birth of Article 2(4) of the UN Charter.

The preamble of the UN Charter clearly states that the member states of the UN need to ‘practice tolerance and live together in peace with one another as good neighbours and to unite our strength to maintain international peace and security… ’[1] The UN Charter then goes on to set out two primary principles. The first is under article 2(3) which asks all member states of the UN to ‘settle their international dispute by peaceful means in such a manner that international peace and security and justice are not endangered’.[2] The second principle is under article 2(4) of the UN Charter which expresses a general prohibition on the use of force.

It states that:

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’.[3]

More than 192 countries, including Libya, are signatories to the UN Charter. The principles set out in the UN Charter are binding on all its member states. There are 2 exceptions however to Article 2(4) on the prohibition of the use of force. The first is under the authorisation of the Security Council (SC) in accordance with Chapter VII of the UN Charter and the second is under Article 51 of the UN Charter which facilitates the right to individual or collective self defence if an armed attack occurs against a member state of the UN.

In the context of Libya, all the recent events point towards an internal armed conflict within Libyan territory. Therefore, article 51 of the UN Charter would not be applicable; which only leaves permissible use of force under the express authorisation of the UNSC.

Article 41 of the UN Charter gives the UNSC acting pursuant to Chapter VII of the UN Charter authorisation to take measures not resulting in the use of armed force to give effect to its decision and may call upon its member states to apply such measures.[4]

If the UNSC considers that the measures taken under article 41 are inadequate, it may authorise measures to be taken under Article 42 of the UN Charter which includes the use of force. Article 42 states that:

“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”.[5]

The gateway for Chapter VII of the UN Charter is a determination by the UNSC that there be “existence of any threat to the peace, breach of peace or act of aggression”.[6] The current situation in Libya has raised concerns within the international community. Although the exact figure of wounded and dead victims is still not accurately known, current estimate published by Human Rights Groups in Libya suggests that at least 6000 people died. There have been reports of gross violations of human rights against the Libyan people hence the ensuing cry for humanitarian intervention by the international community. This is often used as legal justification for economic and military measures being taken to restore peace and security within a state.

While some might take the position that the doctrine of humanitarian intervention is illegal, others take the view that it is a permissible exception on the use of force depending on the reason, form and scale of force used. Take for example NATO’s air strikes. In his article ‘Who killed Article 2(4)’, Professor Tom Franck stated that reliance on the ‘the margin of flexibility’[7] is resorted to in order to justify NATO’s actions. However inappropriate this proposition seems, it can be construed as a valid legal argument.

On the 26th February 2011, the UNSC deploring what it called “the gross and systematic violation of human rights” in strife-torn Libya, unanimously adopted resolution 1970 under Article 41 of Chapter VII of its Charter. This resolution called on all member states to facilitate and support the return of humanitarian agencies, make available humanitarian and related assistance in Libya and expressed its readiness to consider taking additional appropriate measures as necessary to achieve that. The UNSC also noted that the widespread and systematic attacks against the Libyan people would amount to crimes against humanity, and, as a result referred the situation in Libya to the International Criminal Court (ICC).

Following non compliance of UNSC 1970 by the Gadaffi regime, the UNSC further adopted resolution 1973 on 17 March 2011 which reaffirmed what was stated in resolution 1970 and invoked Article 42 of the UN Charter, authorising the UN member states to take all necessary measures to protect civilians and civilian population who are under threat of attack. This resolution formed the legal basis for military intervention in the Libyan civil war demanding “an immediate ceasefire and authorising the international community to establish a no-fly zone, aerial patrols, bombardment, asset freeze and to use all means necessary short of foreign occupation to protect civilians”[8].

A repeat of history (Gulf War and Iraq War) points many to believe that an invasion of this magnitude is often applied where strategic or economic developments are of considerable significance. When looking at past cries for humanitarian intervention (such as the Rwandan genocide, the ongoing civil war in DRC, conflict in Darfur), there seems to be a lack of consistency in the approach taken by the UNSC in determining when to invoke Chapter VII of the UN Charter. Nevertheless, it is impossible to envision a future in Libya with Gadaffi in power. He is a key player in the massacre of his own people and should be held accountable. The fact remains that the UNSC has been empowered with the right to make determination on when to invoke Chapter VII of the UN Charter. Whether it’s right or wrong, or whether political, economic or strategic considerations are at play, the fact remains and is evident that there is gross violation in the situation in Libya and it would be profound negligence on the part of the international community had no measures been taken to address this situation.

What we may look forward to is a day when the UNSC, which is endowed with great powers, can uniformly give effect to its position and powers in situations where averting humanitarian catastrophe and preserving human lives takes precedent over any other ulterior motives. It is clear that the use of force in certain situations may not be desirable, but is necessary to avoid a greater disaster. In such situations, it is important for the international community to be more accommodating and look at its legitimacy and necessity.

[1]The Preamble, Charter of the United Nations, 1945, available at http://www.un.org/en/documents/charter/preamble.shtml

[2]The United Nations Charter, Article 2(3)

[3]The United Nations Charter, Article 2(4)

[4]The United Nations Charter , Article 41

[5]The United Nations Charter, Article 42

[6]The United Nations Charter, Article 39 ; “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.